Citation Nr: 0813936 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 07-02 684 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for Chiari 1 malformation. 2. Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his fiancée ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from March 2003 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 RO rating decision that denied service connection for Chiari 1 malformation and for a neck disability. In July 2007, the veteran testified at a Travel Board hearing at the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that there is a further VA duty to assist the veteran in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The veteran's service medical records show that he was treated for Chiari 1 malformation and for neck or cervical spine problems. On a medical history report at the time of the December 2002 enlistment examination, the veteran checked that he did not have dizziness or fainting spells or frequent or severe headaches. He also checked that he did not have any bone, joint, or other deformity. The reviewing examiner did not refer any disorders. The December 2002 objective enlistment examination report included notations that the veteran's spine and other musculoskeletal systems were normal and that his neurological evaluation was normal. A June 2003 treatment entry noted that the veteran was seen for a neck injury times one day. He reported that he injured his neck during physical training and that he developed pain in the back of his neck. He stated that after the pain, he also developed a headache with nausea. The veteran indicated that he presently had some pain, but no nausea. The assessment was cervical strain. Another June 2003 entry for the following day indicated that the veteran reported that the pain was a lot better. The assessment was cervical strain. A July 2003 entry reported that the veteran presented for follow-up of neck pain for two weeks. It was noted that the veteran stated that he still had pain, although he had taken medications and his X-rays were normal. The assessment was cervical strain. A March 2004 entry noted that the veteran was seen for complaints of a headache. He reported that while he was doing push-ups during physical training at his last duty station, something in his neck popped and he got a bad headache. It was noted that a review of the record showed that the veteran was treated for cervical strain. He stated that his headaches had worsened since that time. As to an assessment, it was noted that the veteran complained of severe headaches that were increasing in severity. It was reported that the veteran was requesting an imaging study and that it was probably a good idea that one should be performed. A May 2004 entry noted that the veteran was seen recently for headaches that were increasing in severity. It was noted that a magnetic resonance imaging (MRI) study was performed and that it showed a Chiari type 1 malformation. A July 2004 entry related an assessment that included headaches, chronic, worsening, and Chiari malformation. Another July 2004 entry noted an assessment of Chiari-1 malformation, likely contributing to the veteran's headaches. On a medical history form at the time of an August 2004 examination, the veteran checked that he had dizziness and fainting spells and frequent and severe headaches. The reviewing examiner noted that the veteran had a brain condition called Chiari type 1 malformation and that he was really dizzy after physical training or other strenuous activity. It was also reported that the veteran had headaches everyday and that they would wake him up in the middle of the night. The August 2004 objective separation examination report noted that the veteran's spine and other musculoskeletal systems were normal and that his neurological evaluation was normal. A September 2004 medical evaluation board report indicated that the veteran's Chiari type 1 malformation existed prior to service and was permanently aggravated by service. It was noted that the proximate date of origin was unknown. An October 2004 statement from J. Iskandar, M.D., an Army physician and Assistant Chief, Neurosurgery Service, noted that the veteran had a Chiari-1 brain malformation that was likely the source of his chronic headaches. Dr. Iskandar stated that such condition could not be defined as a pre- existing condition with regards to the veteran's military service as some of the cases were acquired in nature. An October 2004 statement from L. J. Olsen, M.D., another Army physician, noted that it was her understanding that Chiari-1 malformation was a congenital malformation of the skull that resulted in cerebellar tonsils being below the foramen magnum as a chronic condition. Dr. Olsen noted that the veteran obtained a letter from Dr. Iskandar that stated that it was possible for the Chiari-1 malformation to be acquired and that it was possible that the veteran acquired such condition after his enlistment in the military. Dr. Olsen stated that she stood corrected and that it was possible that the veteran's condition was acquired. Dr. Olsen indicated that as they didn't have a computed tomography scan or MRI of the veteran's brain before he joined the military or at the time he joined, there was no way to be sure when he acquired the condition. Dr. Olsen stated that it was entirely possible, according to Dr. Iskandar, a neurosurgeon, that the veteran acquired it after enlisting. The December 2004 physical evaluation board report noted that the veteran had Chiari 1 malformation with partial herniation of the cerebellar tonsils. It was reported that the veteran's functional limitations in maintaining the appropriate level of adaptability, caused by the physical impairments, made him medical unfit to perform his duties. A post-service December 2005 VA general medical examination report related diagnoses including a normal cervical spine examination and Chiari 1 malformation. A December 2005 VA spine examination report indicated a diagnosis of a normal cervical spine examination. Both examination reports noted that the veteran's claims file was reviewed. A December 2005 VA neurological examination report noted that the veteran's claims file was reviewed. The diagnoses included Chiari 1 malformation without hydrocephalus; obesity; and use-related low back pain secondary to the Chiari 1 malformation and obesity. The examiner commented that the Chari 1 malformation was a congenital defect. The examiner stated that people born with such condition could develop headaches and dizziness due to increased intracranial pressure caused either by Valsalva maneuvers (exertion during breath-holding which increased intracranial pressure by increasing venous pressure) or by flexing the neck (preventing the egress of cerebrospinal fluid through narrowed foramen magnum). The examiner stated that pursuant to the neurological examination, the veteran had intact venous pulsations in the optic fundi, indicating low-normal intracranial pressure consistent with the MRI showing no evidence of hydrocephalus. The examiner indicated that the veteran's neurological condition was static and that he had learned how to prevent symptoms. The examiner remarked that there was no evidence of aggravation by service and that being a congenital defect, Chiari 1 malformation was not caused by or the result of military service. The Board observes that the examiner pursuant to the December 2005 VA neurological examination did not address the medical opinions of Dr. Iskandar and Dr. Olsen that Chiari 1 brain malformation could be acquired and that the veteran could have acquired the disorder after enlisting. Additionally, the VA examiner did not provide any rationale for his conclusion that the veteran's condition was not aggravated by service. As noted above, the September 2004 medical evaluation report specifically indicated that such condition was permanently aggravated by service. Thus, the Board finds that a medical opinion should be obtained on remand. 38 C.F.R. § 3.159(c)(4). Additionally, the Board notes that at the July 2007 Board hearing, the veteran testified that he was currently receiving VA treatment for his Chiari 1 malformation. The veteran stated that the Chiari problems also involved his neck. He also reported that he specifically underwent a MRI as to his condition at the end of May 2007. The veteran's fiancée indicated that the MRI showed that the veteran's condition had worsened. The veteran indicated that the MRI was performed at the Columbus, Ohio VA Outpatient Clinic (VAOPC). The Board observes that there are no VA treatment reports of record. As there are possible VA treatment records that may be pertinent to the veteran's claims, they should be obtained. See Bell v. Derwinski, 2 Vet.App. 611 (1992); 38 C.F.R 3.159(c). Accordingly, the case is REMANDED for the following: 1. Obtain copies of the veteran's VA medical records (to specifically include a May 2007 MRI), which are not already in the claims folder, concerning his claimed Chiari 1 malformation and neck problems, and dated since his separation from service, from the Columbus, Ohio VAOPC. 2. Ask the veteran to all other VA and non-VA providers who have treated him for Chiari 1 malformation and neck problems since his separation from service. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 3. Make arrangements for the claims folder to be reviewed by a VA neurologist for a medical opinion to determine the nature and likely etiology of the veteran's claimed Chiari 1 malformation and neck disability. The report should indicate that such has been accomplished. The examiner should specifically indicate whether the veteran has a diagnosed neck or cervical spine disability, as separate from Chiari 1 malformation. The examiner should also specifically indicate whether the veteran's Chiari 1 malformation is a congenital or developmental disorder. Based on a review of historical records and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not (e.g., a 50 percent or greater possibility) that (1) the veteran's Chiari 1 malformation and (2) any diagnosed neck or cervical spine disability are etiologically related to his period of service. If the examiner finds that the veteran's Chiari 1 malformation is a congenital or developmental disorder, the examiner should indicate whether any such pre-service disorder was permanently worsened beyond natural progression by service. The examiner should also address whether any superimposed injury or disease occurred as to the veteran's Chiari 1 malformation during his period of service. Further, the examiner should specifically comment on the medical opinions provided by Dr. Iskandar and Dr. Olsen. 4. Thereafter, review the claims for entitlement to service connection for Chiari 1 malformation and for entitlement to service connection for a neck disability. If the claims are denied, issue a supplemental statement of the case to the veteran and his representative, and they should be given an opportunity to respond before the case is returned to the Board. The veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).